Opinion
F074297
09-19-2017
THE PEOPLE, Plaintiff and Respondent, v. GORDON WILL COLUMBUS, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. CRM028789)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant Gordon Will Columbus stands convicted of attempted murder, assault with a firearm, and being a felon in possession of a firearm; enhancements also were found true. Columbus contends his convictions must be reversed because the trial court erred prejudicially when it admitted a 911 call into evidence. We affirm the convictions.
FACTUAL AND PROCEDURAL SUMMARY
On September 30, 2015, Columbus was charged in count 1 with attempted murder, a violation of Penal Code sections 187 and 664; count 2 charged assault with a firearm in violation of section 245, subdivision (a)(2); and count 3 charged that Columbus had a prior felony conviction and was in possession of a firearm, in violation of section 29800, subdivision (a). As to count 1, an enhancement pursuant to section 12022.53, subdivision (d) was alleged. Enhancements pursuant to sections 12022.5, subdivision (a) and 12022.7, subdivision (a) were appended to count 2.
All further statutory references are to the Penal Code unless otherwise specified. --------
Columbus pled not guilty to each count and denied all enhancements. Trial by jury commenced on April 1, 2016. On April 1, outside the presence of the jury, defense counsel moved to exclude from evidence a 911 call relating to the shooting. On April 5, 2016, the trial court ruled the audio recording of the 911 call was admissible.
Evidence at trial established that one week prior to February 3, 2013, Diana Holland was in her car leaving Castle Garden apartment complex in Atwater when she saw Columbus with a person she recognized from high school. Columbus walked up to Holland's car and told her to pull over. Holland refused and drove away.
A few days later, Holland saw Columbus at the Aptos Apartments, where Holland's sister lived. Columbus again was accompanied by Holland's high school acquaintance. The two men were on the opposite side of the apartment fence and told Holland to, " 'Come here.' " Holland again refused and went back inside her sister's apartment.
The night of February 7, 2013, two groups of people were at the Aptos Apartments. In the parking lot, Lynette Wilson was in her car; her daughter, Candice McCarty, and Columbus were outside the car speaking with Wilson. Columbus had spent the night at McCarty's apartment. At one point in the conversation, Columbus stated he would be right back and took off walking toward the apartments.
In the same apartment complex, Holland and her boyfriend, Richard Ferreira, were visiting Holland's sister. Holland and Ferreira stepped outside to smoke a cigarette. While outside, Holland noticed a man walking toward a closed fence; the man turned and Holland recognized him as Columbus. Holland told Ferreira, " 'That's that guy that tried to pull me over.' " Moments later, Columbus began walking toward Holland and Ferreira.
Columbus came within touching distance of Holland and Ferreira. He was wearing a black hoodie. Ferreira leaned against the wall in order to allow Columbus to pass by them. Columbus pulled out a gun that appeared to be a silver revolver and started shooting; Holland froze in place and focused on Columbus's face.
The first shot hit Ferreira in the abdomen; Ferreira started to run away. As he tried to run, Columbus shot him in the back. Ferreira hid behind some potted plants. Columbus fired more shots, then turned and ran toward the parking lot.
After Columbus ran away, Holland ran into her sister's apartment. Ferreira also went into the apartment, after which Holland drove him to the hospital. Ferreira spent 11 to 12 days in the hospital recovering from the gunshots to his lung, liver, and kidney.
Columbus was arrested on July 30, 2015, in Stockton. He told officers he dated a couple of women that lived in the Aptos Apartments area. Columbus left town after the shooting.
The jury found Columbus guilty on all three counts and found all enhancements true.
The trial court sentenced Columbus to the upper term of nine years on count 1, and a term of 25 years to life for the section 12022.53, subdivision (d) enhancement appended to count 1. The term imposed for count 2 was stayed pursuant to section 654. On count 3, Columbus was sentenced to the upper term of three years to run concurrently with count 1. Various fines and fees were imposed.
Columbus filed a notice of appeal on August 25, 2016.
DISCUSSION
Columbus's sole contention on appeal is that his convictions should be overturned because the trial court erred in admitting the audiotape of the 911 call. He contends the audiotape should have been excluded from evidence as its admission violated his Sixth Amendment constitutional right to confront witnesses against him.
Standard of review.
A claim of federal constitutional error is reviewed on appeal under the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Aranda (2012) 55 Cal.4th 342, 367.) Under Chapman, a federal constitutional error is harmless when it is beyond a reasonable doubt the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Reversal is required when there is a reasonable possibility the error might have contributed to the verdict. (Ibid.)
Factual Summary
An anonymous 911 call was made to the police department the night of the shooting. The police dispatcher asked the caller to state the nature of the emergency and the caller responded, "[T]here were just some gunshots over here at the Aptos Apartments, in the very back building like, in their walkway." The caller also was asked if the shots were outside or within the complex's gated area, to which the caller responded, "[M]ight have been from the outside but there was a - a, a white pickup with a black camper shell on it with a little grey primer spot on the driver's side front fender near the windshield." The caller then told the dispatcher the truck "just took off," and "it looked like somebody was walking."
The dispatcher asked how many shots were fired and the caller responded three. The dispatcher asked if the shots occurred inside or outside of the apartment gates and the caller initially responded inside, but then stated the shots might have been from the street coming into the complex, but the caller did not "think so." The caller then described in detail and without prompting precisely what he had observed:
"[Caller]: "But I seen that there must have been five people that I've seen. One driving the truck, two other guys took off down the other alleyway and then a coup-, 'bout a minute after that, two guys came out of the alleyway and got in a car...
"Q: Mm-hm.
"A: [H]ere in the parking lot and took off. They were all inside the parking lot, so here in the very back, the very last building; the very last walkway. It's lit up real good but it [-] I just went out there to smoke a cigarette and I seen those guys all the way over there and the truck just sitting there and I heard a couple gun shots and that dude came out of there and instead of going back to the truck, he went down the other walkway where another guy was standing. And the truck sat there for a couple seconds and it took off.
"Q: Mm-hm.
"A: Then about a minute after that, two other guys came walking out of the alleyway where the gunshots came from, on the walkway I should say. And jumped in the car in the parking lot, it looked like a little four door kind of greyish-tannish sedan. They just went out the front gate and there's cameras all over this place, so shouldn't be hard to figure out who it was.
"Q: Okay, and do you want somebody to contact you or do you want to remain anonymous?
"A: I'd rather remain anonymous but, and 'cause I've lived here for awhile and it's been quiet and then all of a sudden I seen this, so.
"Q: Okay, I'll get the officers over there.
"A: Thank you."
On April 1, 2016, defense counsel argued the audiotape should not be admitted because the caller was anonymous and therefore, the tape was unreliable; and to be admissible the statements needed to be spontaneous and made under the stress of the event, but the caller was "very monotone" and "seems relaxed." Defense counsel also argued admission of the audiotape would violate the Sixth Amendment and Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The trial court ruled the audiotape would be admitted. The trial court found the 911 call had been made within five minutes or less of the shooting; the caller provided information about what he heard and saw; and although the caller had a "very calm" tone, the content of the call did not "indicate a reflective process where he's creating things." The trial court opined that 911 calls "are generally pretty spontaneous," and people call "because they're upset or a witness to a scene or heard something that warrants a call for help."
During the trial, the audiotape of the 911 call was played for the jury.
Sixth Amendment
The confrontation clause does not bar the admission of a statement neither offered for its truth nor nontestimonial in character. (People v. Blacksher (2011) 52 Cal.4th 769, 813 (Blacksher).) To determine if the confrontation clause is implicated, it must be determined whether a statement offered against a criminal defendant is hearsay, whether the statement is admissible under a hearsay exception; and if so, whether the statement is testimonial. (Ibid.)
Relying on Michigan v. Bryant (2011) 562 U.S. 344, our Supreme Court set forth a multi-factor test to determine the "primary purpose" of a hearsay statement offered against a criminal defendant. (Blacksher, supra, 52 Cal.4th at p. 813.) We summarize very generally these factors. A reviewing court must objectively evaluate the encounter's circumstances, taking into account the parties' statements and actions, and consider whether an ongoing emergency existed, or appeared to exist. (Id. at pp. 813-814.) Whether an ongoing emergency existed is highly dependent on context. A reviewing court should determine if a nontestimonial encounter addressing an emergency evolved, "converting subsequent statements into testimonial ones." (Id. at p. 814.) Finally, regardless of the existence of an emergency, a reviewing court should examine how and where the statements were obtained. It is important to consider the informality of the statements and the circumstances of their acquisition. (Id. at p. 815.)
Our Supreme Court has held that a constitutional challenge under Crawford can be resolved without analyzing the actual constitutional issue if any assumed error was harmless beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 652; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [finding it unnecessary to examine "complex constitutional question" because any error was harmless].)
911 Call Not Testimonial
In Crawford, the United States Supreme Court held the Sixth Amendment bars the admission of out-of-court testimonial statements except when both the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) Crawford did not set forth "a comprehensive definition" of testimonial evidence but held that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68, fn. omitted.) Crawford held that where the proffered statement is nontestimonial, state law may regulate the admission of evidence by applying statutory hearsay rules without running afoul of the confrontation clause. (Ibid.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court determined "when statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause." (Id. at p. 817.) Davis offered the following definition of testimonial statements under Crawford and the Sixth Amendment:
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822, fn. omitted.)
A series of California cases have found that a declarant's statements to a 911 operator are not testimonial under Crawford. In People v. Corella (2004) 122 Cal.App.4th 461 (Corella), the defendant's wife called 911 and reported to the operator that the defendant had hit her and repeated the accusation to a police officer and medical personnel who responded to the call. At the preliminary hearing, the defendant's wife claimed her prior accusations were false, and she refused to testify at trial. The trial court found the wife's initial statements to the 911 operator were not testimonial under Crawford and admitted her statements as spontaneous declarations. (Id. at pp. 464-465.)
Corella, which was decided prior to Davis, anticipated much of the United States Supreme Court's reasoning in that case and held the wife's statements to the 911 operator were not testimonial under Crawford. Corella noted the wife's statements were not " 'knowingly given in response to structured police questioning,' and bear no indicia common to the official and formal quality of the various statements deemed testimonial by Crawford. [The defendant's wife], not the police, initiated the 911 call to request assistance.... Not only is a victim making a 911 call in need of assistance, but the 911 operator is determining the appropriate response. The operator is not conducting a police interrogation in contemplation of a future prosecution." (Corella, supra, 122 Cal.App.4th at p. 468.)
In People v. Brenn (2007) 152 Cal.App.4th 166 (Brenn), the defendant and the victim lived at a group home and got into a fight over the defendant's girlfriend. The defendant grabbed a knife and stabbed the victim in the stomach. The victim left the group home, went to another location, called 911, and reported the stabbing. The 911 operator asked the victim who had stabbed him and how it had happened. The victim identified the defendant, explained they were fighting about the defendant's girlfriend, and described the fight in detail. The operator asked the victim several questions about the defendant's location, whether the defendant had mental health problems, and if he still had a knife. The victim answered to the best of his knowledge. (Id. at pp. 170-171.)
Brenn held the victim's statements to the 911 operator were not testimonial under Crawford and Davis because "the purpose and form of the statements were not the functional equivalents of trial testimony." (Brenn, supra, 152 Cal.App.4th at p. 176.) Brenn further held there was no material difference between the victim's statements to the 911 operator about the stabbing and the 911 call in Davis. (Brenn, at p. 177.) Brenn held the victim's statements about the stabbing were made "in response to rapid-fire questioning from the dispatcher. There was nothing formal, solemn or structured about the colloquy. And unlike a criminal prosecutor, the dispatcher was primarily concerned with what was happening at the moment, as opposed to what had happened in the past. The dispatcher was eliciting information in an attempt to assess the present situation and help [the victim] and the responding officers, not secure a conviction in a court of law." (Id. at pp. 176-177.)
Brenn also rejected the defendant's argument that the victim no longer was facing an emergency as he spoke to the 911 operator about the stabbing and noted such a claim was "much easier to make from a law office than from 100 feet from someone who has just stabbed you." (Brenn, supra, 152 Cal.App.4th at p. 177.) The victim was suffering a stab wound and defendant was still at large. "It is hard to construct a definition of the word 'emergency' that this scenario does not fit." (Ibid.) The victim's information was important to help the police "formulate an appropriate response to the situation. It does not appear the information was elicited or provided for the primary purpose of making a case against [the defendant] at trial." (Ibid.)
The caller's primary purpose for making the statements to the 911 dispatch officer was to gain a police response. The transcript of the 911 call demonstrates that police did not arrive until after the 911 call was made - hence the 911 operator's statement that she would "get the officers over there." The statements were not yet the product of an interrogation, rather they were made to the 911 operator to elicit a police response to gunshots being fired. Gunshots had been fired; there was a wounded victim; and the shooter was at large. As in Brenn, "It is hard to construct a definition of the word 'emergency' that this scenario does not fit." (Brenn, supra, 152 Cal.App.4th at p. 177.)
Here, as in Davis and the California cases, the 911 caller's statements to the 911 operator were not testimonial under Crawford; the trial court properly admitted the audiotape of the 911 call even though the caller did not testify and was not subject to cross-examination; and Columbus's Sixth Amendment rights were not violated.
Excited Utterance
Even if an out-of-court statement is not testimonial under Crawford, the statement still must be admissible under applicable state evidentiary rules, including hearsay rules. (Crawford, supra, 541 U.S. at p. 68; People v. Cervantes (2004) 118 Cal.App.4th 162, 173; People v. Banos (2009) 178 Cal.App.4th 483, 494, fn. 3.) Evidence Code section 1240 states the excited utterance or spontaneous declaration exception to the hearsay rule:
"Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
"The hearsay exception for spontaneous declarations is among those 'firmly rooted' exceptions that carry sufficient indicia of reliability to satisfy the Sixth Amendment's confrontation clause. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 529; see also People v. Rincon (2005) 129 Cal.App.4th 738, 756-757.)
The trial court's determination of the preliminary facts, such as whether the declarant was under the stress of excitement when the statements were made, will be upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 235-236 (Phillips); People v. Brown (2003) 31 Cal.4th 518, 540-541.) The court's ultimate decision to admit the evidence is reviewed for an abuse of discretion. (Phillips, supra, at p. 236.)
Columbus's challenge to the trial court's exercise of discretion is similarly unconvincing as is his challenge to its admissibility under Crawford. People v. Gutierrez (2000) 78 Cal.App.4th 170 explains the requirements that must be met in order for the excited utterance exception to apply to hearsay evidence, such as the contents of a 911 call. First, there must have been an occurrence startling enough to produce nervous excitement and unreflecting statements. Second, the statements must have been made before there was time to contrive and misrepresent. Finally, the statements must have related to the circumstances of the occurrence that preceded them. (Id. at p. 177; see also People v. Farmer (1989) 47 Cal.3d 888, 901 (Farmer).) The decision whether to admit hearsay evidence under this exception falls within the trial court's broad grant of judicial discretion. (People v. Hines (1997) 15 Cal.4th 997, 1034-1035, fn. 4.)
Numerous cases have upheld admission of 911 calls as falling within the parameter of the excited utterance exception. Corella concluded that the 911 call at issue satisfied the requirements of section 1240. (Corella, supra, 122 Cal.App.4th at pp. 466-467.) Earlier, in People v. Roybal (1998) 19 Cal.4th 481, 516, the California Supreme Court upheld admission of a 911 call placed by the victim's husband and in Farmer, supra, 47 Cal.3d at pages 903 through 905 it upheld admission of a 911 call placed by the victim and statements the victim made to a responding police officer.
Here, the 911 caller was prompted to make the 911 call by the startling occurrence of having heard gunshots in the apartment complex, an occurrence that was unusual because the caller "lived here for awhile and it's been quiet and then all of a sudden I seen this ...." The caller's statements were made roughly contemporaneous with events that were unfolding, not later when he would have had an opportunity to reflect or contrive, and only those statements that pertained to the incident were admitted into evidence. Under these facts, we conclude the trial court did not abuse its discretion in admitting the audiotape of the 911 call pursuant to Evidence Code section 1240. (Phillips, supra, 22 Cal.4th at p. 236.)
Harmless Error
Here, assuming it was error to admit the audiotape of the 911 call, any error was harmless. The 911 call did not identify Columbus as the shooter or even as being at the scene; the 911 caller did not identify any individual. The evidence tying Columbus to the scene of the shooting and identifying him as the shooter came from sources other than the 911 caller.
McCarty placed Columbus at the Aptos Apartments at the time of the shooting; he was there with McCarty and had spent the night with her. Wilson told officers the black male standing next to her car with McCarty was wearing a black hoodie. Holland and Ferreira testified the shooter was wearing a black hoodie. Holland identified Columbus as the shooter; she had seen him twice in the week before the shooting and was within reach of Columbus when he shot Ferreira.
Any constitutional or evidentiary error in admitting the audiotape of the 911 call was harmless beyond a reasonable doubt. (People v. Jennings, supra, 50 Cal.4th at p. 652; People v. Jenkins, supra, 22 Cal.4th at p. 1015-1016.)
DISPOSITION
The judgment is affirmed.